Governor General Gets Political
GG recognizes Mi'gmaw land claim to all of Newfoundland, despite history, law, and policy
Governor General Mary Simon showed up in St. John’s over the Canada weekend apparently as a last minute substitute for the Princess Royal at ceremonies marking the 100th anniversary of the unveiling of Newfoundland and Labrador’s national war memorial.
Simon used the chance to drop a nakedly political bomb on a totally different subject at the start of her speech that was broadcast across Canada.
The Governor General declared in her remarks that she was standing on unceded territory of Mi’gmaw people. She said that the statement reflected the history of “the region”. She also said it was the embodiment of reconciliation, or words to that effect.
But it doesn’t reflect history. It's not truth. And it sure won’t reconcile anything.
It also flies in the face of court decisions and federal and provincial policy.
Normally, federal officials clear every word out of the Governor General’s mouth so this clearly wasn’t an accident or an off-the-cuff thing.
You see, the Mi’gmaw people of Newfoundland and Labrador have no aboriginal claim to any territory in the province.
Period.
The claim was settled in court in 2006 when the Supreme Court of Canada refused to hear an appeal from the Court of Appeal that had upheld an earlier decision of the Supreme Court of Newfoundland General Division on the matter.
In Queen v. Drew et al, 2003 NLSCTD 105, issued 17 July 2003, Justice Leo Barry dismissed the Mi’gmaw claim in a judgment that took more than 600 pages to deal with the claim in detail.
Barry relied on the test set down by the Supreme Court of Canada in R v Van der Peet, 1996 to decide whether an individual has an aboriginal right to do something under the Canadian constitution. Barry found that:
The ancestors of the Mi’kmaq of Conne River arrived on the Island of Newfoundland some time after 1550 A.D., by which time European contact and influences prevented their fishing, hunting and trapping practices from attaining the status of aboriginal rights. [There’s no archeological evidence to support Mi’gmaw presence on the island before European arrival.]
Even if the Mi’kmaq ancestors were present on the Island of Newfoundland before European contact, the Defendants have not proven on a balance of probabilities that they then fished, hunted or trapped in the territory now known as the Bay du Nord Wilderness Area.
The 1725 treaty ratified at Annapolis Royal in 1726 by Mi’kmaq representatives by its express terms did not apply to Newfoundland, it should in any event be interpreted as restricted to territory within the jurisdiction of the Governor of Nova Scotia, and in any event it was terminated by subsequent hostilities between the Mi’kmaq and the British.
The 1752 treaty signed by the Governor of Nova Scotia and the Chief of the Shubenacadie Mi’kmaq Band applied only to the territory of that Band and not to Newfoundland and in any event was terminated by subsequent hostilities.
The Defendants have not established that the 1759 Schomberg - Whitmore treaty involved anything more than an oath of allegiance by the Mi’kmaq to the British Crown.
The Defendants have not established the Halifax Treaty of June 25, 1761, signed by the Chief of the Cape Breton Mi’kmaq Band and the Lieutenant-Governor of Nova Scotia, applies to Newfoundland since the express terms of a treaty probably similar to the missing Cape Breton document confines its application to Nova Scotia, it should in any event be interpreted as restricted to territory within the jurisdiction of the Governor of Nova Scotia, and in any event it would not apply to territory on the Island of Newfoundland where Cape Breton Mi’kmaq only infrequently fished, hunted and trapped up until 1761.
The renewal of a treaty with Cape Breton Mi’kmaq by Captain Thompson aboard the Lark in September, 1763 was a renewal of the oath of allegiance to General Whitmore and did not involve rights to fish, hunt or trap.
In light of the above conclusions, the Court need not determine whether legislation in the Colony of Newfoundland before Confederation with Canada in 1949 extinguished aboriginal rights. But the trial judge questioned whether legislation could demonstrate a clear and plain intention to so extinguish, when the evidence is that no government in Newfoundland ever considered the Mi’kmaq to have aboriginal rights in Newfoundland.
The Court of Appeal dealt with all of the matters raised at trial and also dealt with the changed argument offered by Drew and the others to get around the flaws in their argument at the trial level. The Court of Appeal decision noted that:
A Mi’kmaq claim to forest resources would have to be based on treaty, aboriginal title, or an aboriginal right in respect thereof. The decision in Marshall #3, in our view, effectively bars any claim to the commercial exploitation of forest resources under the 1761 Treaty. As previously observed, though the appellants initially asserted aboriginal title over a considerable area of Newfoundland, they withdrew their claim for aboriginal title prior to trial. Moreover, the appellants, at trial, restricted their claim respecting both aboriginal and treaty rights to the activities of hunting, fishing, and trapping. No reference was made to logging rights or cutting rights. In the hearing of the cross-appeal, counsel for the appellants confirmed that they were not claiming any timber rights, cutting rights or logging rights in this case, except as necessarily incidental to their hunting, fishing and trapping rights.
The Mi’gmaw lost again.
What makes Simon’s words even more significant is that she was in St. John’s, which is way outside the smaller and smaller bits of the island the Miawpukek claim covered by the end of those court cases. By the way, Miawpukek is a recognized First Nation under the Indian Act but the agreement giving the band that status does *not* recognize any rights or claims under sections 25 and 35 of the Constitution Act, 1982.
In the case of Qalipu, the federal government has recognized the group as a band without land or a land claim. The agreement between Qalipu and the federal government recognizes the band under the Indian Act but does not recognise the band as having treaty rights under section 35 of the Constitution Act, 1982. Both those agreements are dated *after* the court cases the Mi’gmaw lost by the way.
Simon’s words were not a usual federal land acknowledgement either. Simon recognized the Mi’gmaw as Indigenous to the island alone. She then relegated the actual Indigenous people - the Beothuk - to a second-rate, almost dismissive mention as part of diverse cultural groups that included the Mi’gmaw, Innu, and Inuit.
This statement by Simon wasn’t an accident.
It flew in the face of history, of evidence, law and policy.
It wasn’t about reconciliation.
Wasn’t about remembrance, either.
And so far there's been no correction or repudiation of her statement.
So what's going on?
None of the possible explanations bodes well either for Simon, the office of the Governor General, or conceivably for the political future of Newfoundland and Labrador.
There is a targeted and effective cross-country effort to maximize the First Nations' position. I am all for being in a community with all people but not with my hands tied behind my back. Words matter, especially when it is from the mouth of the Crown's representative in Canada. We must be able to have these discussions in public without being canceled by those who either benefit directly or pursue ideological purposes with no regard to the long-term consequences.